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Monday, May 01, 2017

Genuine dispute as to any basic fact

In response to my posts on the cert denial in Salazar-Limon, a civil procedure colleague blames Celotex, calling this decision a logical extension of the opening of summary judgment. The explanation was as follows: 1) Defendant can move by "pointing" to a lack of evidence, here of not reaching for the waistband; 2) plaintiff could not offer proof of his version, because he did not say at his deposition (because he was not asked) whether he reached for his waistband; 3) plaintiff bears the burden of persuasion, so defendant wins.

I do not find Celotex problematic--having the exchange of evidence on summary judgment resemble the exchange of evidence on judgment as a matter of law at trial makes sense. But I agree that the lower court was wrong in Salazar-Limon.

My explanation for those conclusions is something I suggested but did not fully elaborate on in my first post and the comments. Courts on summary judgment are insisting on contradictory direct evidence (i.e., contradictory testimony) on a basic fact. What courts are supposed to do is dive into the record, identify the material fact to be inferred from any basic facts, and determine whether all the evidence allows a reasonable jury to find that material fact in either direction. In other words, courts are asking if there is a genuine dispute as to a basic fact. Courts are supposed to look for a genuine dispute as to a material fact, a dispute that can arise because of a dispute over a basic fact or because of other evidence of the material fact that does not rely on the same basic fact.

So consider Salazar-Limon. The officer testified that he saw the the plaintiff reach for his waistband; the lower courts concluded that the absence of evidence contradicting that testimony meant there was no genuine dispute as to whether the plaintiff posed an imminent threat justifying deadly force.* But the plaintiff did testify to a different version of events--"I was walking away, he yelled 'stop', then shot me in the back a few seconds later, before I had a chance to do anything." That testimony should do two things: 1) Allow the reasonable inference that there was no imminent threat, if it believes the plaintiff that he was walking away and got shot before he could do anything; and 2) Allow the reasonable inference that he did not do any other things (including reach for his waistband, threaten the officer, recite Jabberwocky, whatever) that he did not mention doing in his testimony. But the courts ignored it.

[*] Put to one side whether the move from reaching for the waistband to imminent threat to deadly force is justified.

The lower courts' analysis here elevates the basic fact (waistband) over the material fact (imminent threat). The court did not examine all the evidence or all the reasonable inferences that could be drawn from all the evidence. It looked for a single basic fact the defendant identified, looked for contradictory evidence as to that basic fact, and, finding none, granted summary judgment. That is not how this should work. It may be, of course, that a jury will not believe the plaintiff's story that he was walking away and was shot before he could respond to the officer's commands. But the question on summary judgment is supposed to be whether the plaintiff could win. Whether the plaintiff will win is for a factfinder.

Posted by Howard Wasserman on May 1, 2017 at 04:59 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Howard, doesn't Rule 56(c)(3) run counter to your assertion about how summary judgment is supposed to work? 56(c)(3) says "Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record." If the lower court didn't examine ALL the evidence and consider ALL the reasonable inferences that could be drawn from ALL the evidence, doesn't that make it likely that counsel for the plaintiff did not cite ALL the evidence and did not argue all the reasonable inferences? I've always read 56(c)(3) to mean, in essence, thecourt will not do the jobs of the lawyers on summary judgment. The lawyers for the parties MUST identify specific evidence that shows a GDMF, because the court isn't going to scour the record looking for one.

In your comment to your first thread you note that counsel may have erred slightly in drafting his client's declaration - but that seems very generous. Either he couldn't have his client testify that he did not reach for his waistband (because such a denial would have been false) or he failed to address a critical fact that certainly was central to whether or not a genuine dispute existed. Maybe it is my decade of litigating before joining the academy, but the former means SJ was likely appropriate and the later is simply bad lawyering. It is an interesting facet of our common law system that The Law is impacted by the decisions lawyers make - both good and bad - as casesmske their way up the appellate ladder. Here - at least to the casual observer who did not read the record or the petitions - it looks like that lawyer's decision (whether good or bad) shaped this outcome.

Posted by: Brian Clarke | May 1, 2017 6:58:17 PM

Brian: But this elides my point. My argument is that it should not be necessary to dispute the basic fact (reaching for his waistband) if the plaintiff can offer (as he did here) other evidence from which the jury could find there was no imminent threat. The lawyers could point to his testimony--I was shot in the back while walking away--to create the dispute.

I was not suggesting that the court has to scour the record or dig for evidence. I was suggesting that the court has to think more deeply about the inferences to be drawn from an obvious piece of evidence--the plaintiff's deposition.

Posted by: Howard Wasserman | May 1, 2017 7:19:38 PM

I see it as part of the lawyer's job to ensure (as best as possible) that the court need not rely merely on an inference To counter direct evidence (using your term). If the lawyer *cannot* do better than an inference, then the lawyer should know his case may not survive SJ. If the lawyer *can* do better and can provide contrary direct evidence, but does not present that evidence, then I find it hard to fault the court for granting SJ. I don't know which was the case here. But I'm reminded of one of the other SJ Trilogy cases - Matshushita (sp?) - and its statement that there must be more than a metaphysical doubt about a material fact in order to avoid SJ. Does possible inference vs direct evidence lead to more than a metaphysical doubt? I don't know. But every litigator should strive to avoid ever having to find out.

Posted by: Brian Clarke | May 1, 2017 7:36:35 PM

It shouldn't. First, it's inferences both ways--reaching for the waistband only leads to the conclusion of imminent threat via inference. And to the extent direct evidence is stronger than circumstantial evidence (a premise I reject), that still involves the sort of weighing that should be left to the jury.

But let's try this: Suppose the case went to trial. In the plaintiff's case-in-chief, the plaintiff testifies that he was walking away and the officer shot him immediately after the stop command and the officer testifies that he saw the plaintiff reach for his waistband. Would the court, having begun trial, take that case away from the jury under 50(a)?

Posted by: Howard Wasserman | May 1, 2017 8:51:50 PM

If there's no dispute as to the basic fact of the apparent reach for the waistband, how can there be a dispute as to whether there was a reasonably apparent imminent threat? I take it that it just is the law that reasonably appearing to reach for one's waistband poses the requisite imminent threat unless some circumstance makes it clear that one's doing so for peaceful reasons - or at least, it just is the law that it's not clearly established that such reaches are *not* imminent threats, which is all that matters here. So I don't get how "reaching for the waistband only leads to the conclusion of imminent threat via inference," or really why the waistband is a basic rather than material fact. I would say it's a material fact that hooks up to a legal standard about imminent threats, like, say, carrying a bomb. It seems odd to say that bombs are "basic" facts from which we "infer" the "material" fact of an imminent threat, and that even after the police testify to a bomb in moving for summary judgment, we can infer a lack of imminent threat from the plaintiff's testimony just so long as the plaintiff doesn't assert he *was* carrying around a bomb or doing anything else threatening. I don't see how that, or this, isn't just Celotex in reverse; here the non-moving party is failing to come forward with any evidence to dispute the existence of a critical material fact, there the non-moving party failed to come forward with evidence to dispute its non-existence.

Also, I would note that what you say the court ought to do really assumes that there is a dispute about the "basic" fact, though you seem to think you're arguing that there needn't be one. I would understand your argument, I think, if the basic fact here wasn't logically sufficient for the material fact, and if some other basic fact could, if also true, negate the inference from the waistband basic fact. For example, a bee flies into the plaintiff's pants and stings him; at this point, clutching for his waistband area no longer poses an imminent threat. So if the plaintiff testified to that, then yes, now we have a dispute about the "material fact" of imminent threat given these cross-cutting basic facts, or more precisely, given the dispute over whether the officer knew of and could reasonably fail to be aware of the new basic fact of the bee sting (and indeed whether it ever even happened). But I don't think you're arguing that there's some set of facts where the waistband fact's true and yet the material fact of imminent threat's not; you're really just saying the court could infer from the failure to discuss the basic fact that the basic fact isn't true. For example, you say the plaintiff's testimony "should allow the reasonable inference that he did not . . . reach for his waistband," and that it should "allow the reasonable inference that the plaintiff . . . got shot before he could do anything." So what all this boils down to is that you think his telling a story that omits the waistband and isn't really logically inconsistent with the waistband somehow creates a dispute over the waistband.

As for the 50(a) hypo, you're cheating with the "immediately" after the stop command bit, but that (and the general disfavoring of directed-verdict motions, see Unitherm) aside, that's different because there the plaintiff is not responding to the officer's testimony. It would be rather different if the plaintiff came back on rebuttal and still wouldn't or couldn't directly deny that he reached for his waistband (or did something that could reasonably look like he was).

Posted by: Asher Steinberg | May 1, 2017 11:12:11 PM

Because one basic fact is only one way to create a dispute over a material fact. If there are other ways to prove the material fact, then evidence of those other ways (such as being shot in the back at most a few seconds after the stop command) should create a dispute.

It's a basic fact rather than the material fact because substantive law is about imminent threat, not reaching for the waistband--it takes an extra step to get from one to the other. And none of these courts has said that reaching for the waistband per se creates an imminent threat (just as the majority in Scott v. Harris did not say that fleeing at high speeds per se creates an imminent threat). Either substantive-law conclusion would change the summary judgment analysis. But until that happens, these should be treated as competing basic facts.

As for "responding to the officer's testimony." This puts the plaintiff in an impossible situation. What part of the officer's testimony must the plaintiff respond to? Everything? Everything that could trigger an inference of the material fact? The whole point is that we are not going to waste time setting up disputes over basic facts. The goal is to offer evidence, through whatever inferential path, that allows a jury to find for it.

Posted by: Howard Wasserman | May 2, 2017 8:53:58 AM

I think this all makes the case too complicated. As the dissent emphasizes, Salazar-Lonon did specifically contradict the officer's assertion. The officer said that S-L reached for his waist band and started turning. S-L said he was shot in the back immediately before he had time to take any actions and that his body only began to turn after he was shot. Those accounts are contradictory in every way but the most technical sense. It is not so much that one can infer that S-L didn't reach for his waistband under his account; it is that anyone trying to read his account fairly would read it that way. You can argue about whether the Court should have granted discretionary review but the decision below was egregious.

Posted by: Andrew Siegel | May 2, 2017 10:19:20 AM

I agree with Howard's basic point that Salazar-Limon sufficiently contradicted the defendant's claim. I would only add in response to Brian Clarke's earlier comments that he and Justice Alito make the error of crediting the officer's assertion that he saw Salazar-Limon reach for his waistband simply because Salazar-Limon did not directly contradict it. The Court has never held, for purposes of ruling on a motion for judgment as a matter of law, whether under the identical standards of Rule 50 or Rule 56, that a judge must credit the testimony of an interested party simply because it is uncontroverted. Rather, the key paragraph in Reeves v. Sanderson Plumbing Products, Inc., states, with citations omitted:

In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."

The error here is obvious -- the defendant officer is anything but a disinterested witness. Crediting his testimony and drawing favorable inferences respecting danger from it because it was uncontradicted turns Sanderson Plumbing on its head. Because the officer was an interested party, his credibility was inherently in question. It should not have been necessary for Salazar-Limon to have explicitly denied reaching for his waistband; a jury was free to credit his testimony that he was shot in the back while walking away and to refuse to credit (or to credit) the defendant officer's contrary account at trial.

Posted by: Michael Masinter | May 2, 2017 4:37:07 PM

I'll agree with Howard's arguments here, that a basic SJ Tenet of Review ("All-Inferences", see https://en.wikipedia.org/wiki/Summary_judgment) is being abridged/watered-down in Salazar-Limon v. Houston. The 3-way combination of "walking away, shot in the back, nothing in waistband anyway" clearly comprises an inference in favor of nonmovant that must go to the jury, IMHO.

But in case that's not a clearcut enough example of "judicial misconduct at SJ", let's look an even starker example -- in fact, the starkest known example of SJ abuse in existence. The case is Tuvell v. IBM (First Cir, D.Mass.), where the district judge actually REFUSED TO EVEN CONSIDER NONMOVANT'S STATEMENT OF FACTS, as she literally ADMITTED in her opinion(!). There can exist no "excuse" whatsoever for that kind of violation of SJ principles. Yet, it was upheld at Appeal, and at Supreme Court, and at Judicial Council. The case is currently pending at Judicial Conference, as well at DOJ/FBI/PIN (that's right, criminal charges).

Full details can be found at http://JudicialMisconduct.US (a brand new website, currently in "stealth mode", under active development, being announced here for the very first time, official public opening to the public later this month).

Comments, anyone?

Posted by: Walt Tuvell | May 2, 2017 6:17:13 PM

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